affiliated to the International Association of Constitutional Law
I’m grateful to Paul Daly for bringing to my attention the Irish High Court’s Fleming decision and the Ménard Report. However, I think he is wrong to censure the former (at least, as harshly as he does) and to laud the latter.
Should the High Court have granted the application to order the Director of Public Prosecutions (DPP) to promulgate an offence-specific policy, with a view to providing ‘foreseeability and accessibility’? That is, should the High Court have followed Purdy, in which the House of Lords made just such an order (in relation to a different DPP of course)? Daly implies as much, saying that the High Court had to ‘twist away from Purdy’ and saying elsewhere that ‘the High Court wriggled out of Purdy in unconvincing fashion’. But the decisions of the House of Lords do not bind the Irish High Court and Purdy is not at all persuasive. No need then to wriggle out, for the decision should instead just be flatly rejected.
The House of Lords ordered the DPP to promulgate an offence-specific policy in order to guide Ms Purdy in determining whether her husband would be likely to face prosecution if he were to assist her in committing suicide, the relevant act of assistance being the act of helping her to travel to Switzerland in order to there be assisted in committing suicide. The rationale for the Lords’ decision was that the ban on assisted suicide constituted an interference with Ms Purdy’s private life, per Art 8(1), which interference had to be in accordance with law if it was to satisfy the demands of Art 8(2). Their Lordships held that the DPP’s code, which framed the exercise of the discretion to prosecute, formed part of the law in question. As law-abiding persons need guidance as to the legal consequences of their actions, so Art 8(2) required the DPP issue an offence-specific policy.
However, there was never any lack of clarity in the law governing assisted suicide. Section 2(1) of the Suicide Act 1961 unequivocally proscribed the acts in question (assisting a person to travel to a jurisdiction to commit suicide). Contra Jeremy Waldron the proviso in s 2(4) that no prosecution was to be brought without the DPP’s consent did not entail that the ban on assisting suicide was unclear or in need of specification. Rather, this provision, like the 130 or so other equivalent provisions found elsewhere in the law, authorised the DPP to exercise a supervisory control over which prosecutions were to be brought. The House of Lords ordered the DPP to promulgate an offence-specific policy to help a would-be law breaker in calculating the risk of prosecution. Thus, Purdy privileges a very odd conception of the law-abiding person. In truth, a law-abiding person is one who does his or her duty and does not commit offences; the odds of detection and prosecution are irrelevant to him or her. That is, citizens should do what the law says they should, rather than estimate their chances.
The legal duty was always entirely clear: do not assist suicide. In granting the application, the court sought to help people decide whether to flout their legal duty, which aims are contrary to the rule of law. John Finnis makes out this critique of the Purdy decision with illuminating care, first in his ‘The Lords’ Eerie Swansong: A Note on R (Purdy) v Director of Public Prosecutions’, and then in more detail (replying in part to Waldron and considering the DPP’s interim and final policy promulgated in the wake of the Purdy decision) in a paper entitled, ‘Invoking the Principle of Legality against the Rule of Law’, published in my edited collection Modern Challenges to the Rule of Law (LexisNexis, 2011) and, more accessibly, in  New Zealand Law Review 601.
Prosecutorial guidelines are not a specification of the criminal law, providing that, whatever the substantive criminal law may say, some acts are not truly criminal at all. They are guidelines for prosecutors, not for law-abiding citizens, for whom the criminal law itself is the relevant guide. It would be unsound to move to stop a prosecution on the grounds that the prosecutor had not followed the guidelines in question; the guidelines are not a de facto defence on which to block a criminal charge. The DPP does not flout the rule of law if he or she changes the guidelines with immediate effect, such that they apply to cases where the alleged offending predates the guidelines. Indeed, that a person relies on guidelines to flout the criminal law is itself a reason to prosecute, for the act would involve brazen defiance of – by virtue of calculating disdain for – the criminal law. And for this reason, if ordered to promulgate offence-specific guidelines the DPP should aim to reserve the option to prosecute any offence, such that the guidelines do not encourage law-breaking.
What of the Ménard Report? As Daly outlines it, the report’s recommendation seems to me to defy federal criminal law and to flout the constitutionally mandated separation of powers. I make no prediction as to whether the stratagem would succeed, but take Daly’s own scepticism about its prospects to be telling. The stratagem should fail because it is flatly unconstitutional and contrary to the rule of law. It remains somewhat unclear then why Daly lauds the report’s approach, in contrast to the Irish High Court’s approach (refusing to order the DPP to undermine the criminal law). The reason seems to be that it is ‘the only means to give effect to the desire of the population to permit assisted suicide.’ However, the people of Quebec are not entitled to permit assisted suicide. The constitution makes the Parliament of the people of Canada as a whole responsible for decision on point.
The merits of assisting suicide aside, which I think irrelevant to the present discussion, there seems much to commend the Irish High Court’s refusal to be party to an effort to undermine the rule of law, and little to be said for the Ménard Report’s apparent attempt to flout the constitution of Canada and federal criminal law.
Richard Ekins is a Fellow of St John’s College, Oxford.
Suggested citation: R. Ekins ‘Defying the law: a reply to Daly’ UK Const. L. Blog (23rd May 2013) (available at http://ukconstitutionallaw.org)